Dr. Evan Harris (Oxford, West and Abingdon) (LD):
My hon. Friend is making important points. The events of July may have given the Government room to drop back from their earlier timetablehe was right to point out that that has happenedbut the Government asked Lord Carlile to review the definition of terrorism to avoid conflict on another matter and the process is not the sort of force majeure that should allow the timetable on control orders to move. The review is delaying a decision on the definition of terrorism and substantive action to deal with control orders.

Mr. Carmichael:
I do not think that I can add to my hon. Friend's good point.

We accept the need for a consolidating Bill to bring together the disparate elements of anti-terrorism legislation, and the debate has demonstrated that control orders must be dealt with soon. The Joint Committee on Human Rights report shows that they cannot be left in place for as long as the Government seem to propose. Although the renewal of the powers is deeply unsatisfactory, we shall not oppose the order, for the simple reason that we believe that there should be a credible alternative on the statute book before we take that step. However, if the Terrorism Bill is passed by Parliament, that will change. The new offences of acts preparatory to terrorism and encouragement to terrorism are designed to plug gaps in the law and should have a major impact in the area that we are discussing tonight, and by the end of the year we shall have a good idea of how those powers are working.

I ask the Minister to look again at the proposed timetable for legislation. It is surely possible to produce a Bill that will allow the House to consider the case for amending the control orders legislation by January next year, and to make time available to make those amendments to the law before the order before us tonight comes up for renewal again next March. As I said, we shall not oppose the renewal order tonight, but I put the Minister on notice: if the Government fail to honour the commitments that they made, our position cannot be guaranteed this time next year.

In conclusion, I cannot do better than quote the view of Liberty, set out in its briefing for tonight's debate. It says:

"Terrorism poses a threat to the rule of law, to our democratic values and to our human rights. By responding to terrorism with legislation which undermines these very values we also undermine the ultimate antidote to the threat from terrorism and the values that separate us from the terrorist."

6.16 pm

Mr. Kenneth Clarke (Rushcliffe) (Con):
I begin by protecting myself against allegations that I might be regarded as soft on terrorism if I query the order. I am sure that we face a continuing and serious threat of terrorism, and I do not think that anyone in this House can guarantee that we will not experience again attacks on the scale of the ones seen on 7 July, or even worse. We all hope that we will not, but plainly it is one of the first duties of Government to be vigilant against that danger.

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I accept that the people who pose that threat cannot always be dealt with by the ordinary process of the criminal law. I have never queried the fact that, in certain circumstances, one has to anticipate the dangers that such people might create and take preventive measures. I also accept that one cannot always resolve such cases by producing criminal charges to be considered by a jury in the ordinary, open process that, in normal circumstances, everyone in this country cherishes.

I do not think that any significant opponents of the Act on which control orders are based challenged either of those propositions when the Government got into so much trouble. The Government are now in trouble for failing to explain why, for several years, no prosecution took place of a man who has just been convicted under a 19th century law when he was parading up and down the country plainly inciting violencebut the case of Abu Hamza lies outside the scope of this debate, so I shall not dwell on it.

Let me remind the House of the circumstances in which the 2005 Act was passed, which gave rise to the need for the order before the House tonight. The Government were in a state of acute crisis when they produced that legislation and they came within a whisker of losing the entire Bill because they could not persuade the House of Lords, certainly, and a substantial body of opinion in this House that they were entitled to have control orders in the form that they preferred.

The legislation aroused great public concernit was the dominant political issue of the day. There was a great crisis, with the Prime Minister's views on how Parliament should be handled and how the matter should be resolved clearly in conflict with the views of his then new Home Secretary. The public were aware that, for the first time, the Government were proposing that someone in this country should be deprived of their liberty, or have substantial constraints put on their liberty, on the order of a politicianthe Secretary of Stateand not of a judge. It was a dramatic change to all our traditions. I am not criticising the Home Secretary, who is a distinguished holder of his post and whom I hold in regard, but a fundamental principle was being changed in the proposal that a politician, not a judge, should be able to deprive a person of their liberty.

On the question whether there would be any judicial review the Government resisted even the involvement of a judge, and a modest system was then put in place. Finally, there was tremendous debate in both Houses about the standards that were set for the Secretary of State before he could use his powers. The Bill, alas, was eventually accepted on the basis that under non-derogating orders it was necessary only for the Secretary of State to have reasonable suspicion of someone who was subject to those orders. There was no requirement that he should be certain that he had the right person and there was no balance of probabilities to assess whether someone was probably responsible or had threatened to do things of concern. It was merely sufficient for the Secretary of State to have reasonable suspicion about someone and for the threat to be so grave that the powers should be used.

That was the nature of the crisis facing the Government. I do not believe that the Bill would have survived the process to which we give the absurd name

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of "ping-pong" if the Government had not said that they would legislate in the near future so that Parliament could address all those matters. The procedure was rushed, as the hon. Member for Orkney and Shetland (Mr. Carmichael) reminded usproceedings on the Bill took two and a half weeks from start to finish, and it was drastically rewrittenand we were promised a repeat of the legislative process in spring 2006 in which the principle of control orders and many other things in the measure could be addressed. That undertaking has not been honoured.

There is all-party agreement because of the arguments about 7 July which, I am afraid, did not change anything. It was exactly the kind of thing that we had discussed, arguing about how best we could defend ourselves against such an eventuality. May I suggest to Opposition spokesmen that the constant allegations that we are soft on terrorism may have begun to have an effect if they result in our raising these important matters? Everyone retreatedit is no good one or two hon. Members saying that we should have held the Government to the spring 2006 arrangement and that we should have had a proper Bill and a proper debate. Instead, we have the order, which was trailed during those debates. Some people including, I believe, myselfI am not sure, as I have not read the debate recentlypredicted that the offer of renewal within 12 months and early legislation would be reduced to a routine debate in which only a few Members would participate and in which the motion would go through on the nod. Twelve months ago, both Houses were full of hundreds of Members consumed with passion for the great issue of civil liberty, saying that the Government of the day should not have their way unless we were satisfied that a British citizen's fundamental rights were safe. The number of Members in the Chamber today scarcely reaches double figures, and the debate, which is restricted to an hour and a half, is being held on the eve of a recess. The vast majority of hon. Members are well on their way to wherever they will spend the weekend.

Mr. Carmichael:
I intervene merely to place on the record the fact that there are 13 hon. Members in the Chamber.

Mr. Clarke:
The hon. Gentleman's arithmetic is better than that of the Government Chief Whip, although hers has improved.

I therefore have severe doubts about whether we have moved further forward. The Minister kindly thanked the all-party Joint Committee on Human Rights for its work. It could only look at the order after it was announced on 2 February, and we are grateful that it has produced a report on the renewal of control orders in the very short time that it was given. Besides considering derogation from the European convention and so on, it touched on the way in which control orders work and their fundamental nature, as hon. Members have said. Page 4 of the report says:

"The Committee's overall conclusion on this matter is that it has significant concerns about whether, in the absence of sufficient safeguards, this regime of control orders is compatible with the rule of law and with well-established principles governing the separation of powers between the executive and judiciary."

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The Committee complainedI quote from page 9that

"Instead of detailed debate and scrutiny of a Bill there will now be a single debate in each House with no opportunity to amend the legislation".

That refers to the present debate. The Committee argued strongly against the renewal of the legislation unless Parliament had time to debate it.

That underlines the fact that the matter must not be allowed to be buried. It is a feature of modern politics that the agenda moves on. What is an issue of great principle upon which the political futures of Ministers and the stability of Governments depend may last for a week while it takes the headlines, and it returns only if some event or some whim of the media brings it back again. If we are not careful, we are in danger of the tremendous near-constitutional crises of 12 months ago being reduced to renewal orders such as this 12 months later and steadily becoming part of the routine background of politics and our law, where what we all thought were great principles 12 months ago are regarded as silly and fuddy-duddy and will never again be revisited.

We are told that there will be a consolidating Bill early in 2007. I endorse the comments of the hon. Member for Orkney and Shetland about that. It would be utterly shameful if for any reason that timetable slipped. I take it from everything that the Minister of State said that that Bill will address in principle the content of the legislation. She implied strongly that that was the case.

Consolidating legislation normally just puts together existing Acts of Parliament. It is out of order to start challenging the content of a consolidating Bill on its merits. I have not served on one of those Committees for very many years, but my recollection of the Committee stage of a consolidating Bill is that one is in order if one queries whether it is correctly being consolidated and correctly being restated, but to query whether the measure should ever have been passed in the first place is completely out of order.

I trust that the word "consolidating" is not being used in its strict sense, and that the Minister will be able to reassure us that what she means is that in 2007 a Bill will be introduced covering the entire scope of our exceptional terrorism legislation and that it will be redrafted in the light of experience, so giving the House and the other place an opportunity to consider and amend it. Because of the rushed Bill 12 months ago and because of today's debate, neither House has ever had a chance to consider properly and at length the principles of control orders and of whether a politician should be allowed to deprive someone of his liberty without a trial and without that person having any opportunity of knowing exactly what is the basis of the charges that are being made against him.

I hope we will get the reassurance that the timetable will not slip again and that we will have a proper debate on the fundamentals. My major fear, which I have already expressed, but it is the most important feeling I have and the reason that I come along to take part in the debate again, is that these matters cease to be a crisis, become routine and then the use of them grows.

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The first of the extraordinary pieces of legislation that the Government introduced in this field was in 2001 and has already led to the most extraordinary uses. We accept that vast numbers of people are being stopped and searched under anti-terrorism legislation, far beyond anything we ever expected. A heckler at a party conference was detained under anti-terrorism legislation because he upset the Foreign Secretary, and a lady reading a document at the cenotaph with a list of names was arrestedanybody, it seems, but somebody waving a placard demanding death for those who defame their religion, is getting arrested quite causally under some of the provisions.

Control orders are a more serious matter. At present only nine people are subject to them. One is a British citizen, which gives rise to the question whether the orders are being used in a discriminatory fashion. If this House gets relaxed about control orders and we stop hearing concern about the underlying principles, how quickly will that number grow? How long will it be before 50 people are held for one reason or another and scrutinised more or less adequately? Quite a lot of people may be deprived of their fundamental liberty to know what they have been charged with. What chance will they have of challenging such an allegation, satisfying a judge of their innocence and not being subject to a decision made by a political officeholder who has been given far too many powers by Parliament?

If those powers are left on the statute book, someone will abuse them one day. The current Home Secretary is extremely conscientious and would not abuse any of the powers that his office gives him. However, the legislation is there for the future, and who knows what future Home Secretaries will do if we become complacent about the legislation, which in my personal opinion we should never have passed in the first place.